CENSORSHIP&FUNDING

 

INDECENCY AND FUNDING BY THE NEA

History:

1965--NEA established

1989--Controversy over funding of the "Mapplethorpe Retrospective" at the Institute of Contemporary Art at the University of Pennsylvania and Serrano's photographs (expecially "Piss Christ").

1990--Amendments to The National Foundation on the Arts and Humanities Act include section 954(d)(1) which requires the Chairperson of the NEA to ensure that "artistic excellence and artistic merit are the criteria by which [grant applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public."

National Endowment for the Arts v. Karen Finley

The plaintiffs are performance artists. Their applications for grants were made and approved before 954(d)(1) was enacted. The Chairman asked the panel to reconsider after the enactment, and their funding was denied. They are suing, alleging that 954(d)(1) is unconstitutional--a model for viewpoint discrimination. They won in the trial court and in the appellate court.

Supreme Court:

Majority

1. This is not viewpoint discrimination. "Standards of decency" is just a factor to be taken into account when funding projects; "it does not preclude awards to projects that might be deemed 'indecent' or 'disrespectful.'"

2. The requirement is meant to reform procedures for granting funds, not to preclude speech.

3. The terms "decency" and "respect for diverse beliefs and values" are not any more subjective than "artistic excellence" and "artistic merit."

4. In the funding process, it is not possible to be absolutely neutral. "The agency may decide to fund particular projects for a wide variety of reasons, 'such as the technical proficiency of the artist, the creativity of the work, the anticipated public interest in or appreciation of the work, the work's contemporary relevance, its educational value, its suitability for or appeal to special audiences. . . .'"

5. But, if plaintiffs were complaining about a particular funding decision, this would be a different case, requiring a different analysis. A constitutional question would arise if the government were trying "to drive certain ideas or viewpoints from the marketplace."

Justices Thomas and Scalia (concurring):

Funding can discriminate according to viewpoint. Artists are still free to speak; they are simply denied taxpayers $$ in support of that speech.

Justice Souter (dissenting):

Section 954(d)(1) constitutes viewpoint discrimination.

 

CENSORSHIP AND MAYOR GULIANI: The Brooklyn Museum Brooklyn Institute of Arts v. City of New York (S.D.N.Y. 1999)

I. The relationship between the City of Brooklyn and the Museum.

In 1993 the lease was between the Institute and the City of New York.

The Museum has a large permanent collection (1.5 million art objects) and also houses temporary exhibits.

The City pays $5.7 million/yr for maintenance (repairs, fuel, employee wages, cleaning, insurance, etc.).

II. Bringing "Sensation" from London to NY